The Oklahoma Bar Journal September 2022

a disagreement with the ideas expressed in the material, the First Amendment provides protection to students in the K-12 setting. However, the First Amendment doesn’t prevent a school from removing materials for genuine educational or practical reasons. Schools that do have legitimate concerns regarding the educa tional appropriateness of materials in their library should comply with the decision in Pico and make that determination only after following an established district policy that considers genuine pedagogical interests. Age appro priateness, lewdness, vulgarity, accuracy and educational suit ability are all appropriate areas for consideration; however, the simple fact that a complaint has been made would not be suffi cient justification for removal. Public schools should carefully consider the source and volume of requests to restrict access to books or other materials and ensure decisions are based upon what is in the best interest of all students and on educationally appropriate factors. Beyond the school library, schools must also keep in mind efforts to block digital resources based on a disagreement with ideas. 32 Even removing materials, whether in a physical library or made available digitally, simply because they might be offen sive is not a sufficient reason for censorship and could result in a successful challenge. 33 Though curricular decisions are provided significant discretion, a student’s First Amendment rights “may be directly and sharply implicated by the removal of books from the shelves of a school library.” 34

were directly related to materi als in school libraries, but only one library-related bill became law. On April 29, 2022, Gov. Stitt signed HB 3096, which requires that school libraries “be reflective of the community standards for the population the library media center serves when acquiring an age-appropriate collection of materials, nonprint materials, multimedia resources, equipment, and supplies adequate in quality and quantity to meet the needs of students …” Effective Nov. 1, 2022, the law would seem to put into place some statewide standard that school libraries must consider when acquiring new books or other materials. Yet, nothing within the new legislation defines what is meant by community standards or age appropriateness – those terms would be defined at the local level, and consideration of what is appropriate will be made by the school district. The law appears to simply codify what is already the practice for Oklahoma schools. To the extent that a chal lenge may arise over what books a school is acquiring, the plurality in Pico made it clear they were not addressing the acquisition of new materials. Courts would likely grant very broad discretion to the school district in such a challenge; however, decisions on acquisition are not completely free of con straints as they may still implicate the First Amendment in certain circumstances. CONCLUSION Actions by public school boards or their administration that seek to remove or limit access to mate rials in the library may violate a student’s First Amendment rights. Whether the removal is based upon a personal religious belief and thus prohibited by the Establishment Clause or simply

own personal objections to homo sexuality, and any other stated con cern was rooted in that objection. Similarly, a school district in Arkansas moved J.K. Rowling’s Harry Potter books to a different part of the library and required a signed permission slip for students to check out the books. 29 The board had stated their reasons for removal were over concerns that the books might promote disobedience and disrespect for authority but also because they disagreed with the depiction of witchcraft throughout the series. The board members’ testimony had made it clear: The reason for censoring the book was their own desire to suppress ideas they didn’t like. Citing Pico , the court found the decision to move the books and require parental approval was a violation of stu dents’ First Amendment rights. Additionally, though the school attempted to argue that the books would create a substantial disrup tion to the educational environment, the exception defined in Tinker , the school district was unable to show any actual or foreseeable disruption simply by the fact that the books were in the library. The relocation of the books may have been a minimal inconvenience, especially considering the student plaintiff owned the books at home, but the court remarked, “The loss of First Amendment rights, even minimally, is injurious.” 30 Clearly, though Pico is not binding as a plurality opinion, the reasoning by the plurality continues to be utilized by courts confronted with removals from school libraries. 31 Legislatively, Oklahoma’s public schools saw a wide variety of bills this year. Over 500 bills introduced or carried over into this session affected Oklahoma public schools. At least eight OKLAHOMA’S HB 3096

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THE OKLAHOMA BAR JOURNAL